Al Adwan v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-06-14|Before: Sackville J

the applicant's evidence 19 I have some concerns about the reliability of the applicant's evidence. On his account, a surprising number of documents duly posted to, or left for him, at what he says is his residential address have not come to his attention. I am not, however, prepared to disbelieve his claims that he knew nothing of the RRT's decision until he received a copy from his agent on 12 January 2001. According to the applicant, whose evidence on this point I accept, it was the receipt of the document from his agent that prompted him to collect the RRT's registered letter from the Post Office on 16 January 2001. It follows that he filed his application in this Court within twenty-eight days from the date he first received actual notification of the RRT's decision.

jurisdiction 20 In Li v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 219, an application was made to the Court to review a decision of the Immigration Review Tribunal ("IRT"). The IRT had held that it lacked jurisdiction to deal with the application because it had been filed out of time. Gyles J expressed some doubt as to whether the IRT's decision was a "judicially-reviewable decision" within the meaning of s 475(1) of the Migration Act. In particular, he expressed doubt as to whether a refusal by the IRT to exercise jurisdiction could be regarded as a "decision" for the purposes of the Migration Act: at 222-223. His Honour acknowledged, however, that the Court had often assumed jurisdiction in similar circumstances. In the result, he decided to follow established practice and overrule the Minister's objection to competency. 21 Mr Johnson specifically accepted that a decision by the RRT that it does not have jurisdiction to review a delegate's decision on the merits is a "decision of the [RRT]" within s 475(1)(b) of the Migration Act and thus is a "judicially-reviewable decision". 22 In the light of Li v Minister and the position adopted by Mr Johnson, I am satisfied that the decision made by the RRT in the present case is a judicially-reviewable decision and that, subject to the issues raised in the Minister's objection to competency, the Court has jurisdiction to entertain the application for review. The position might be different if the decision were not made by a member of the RRT but by an administrative officer: see, for example, Le Tran Thuy v Minister for Immigration and Multicultural Affairs (2000) 59 ALD 427, at 429, per Branson J.

The Delegate's decision 23 The applicant is a citizen of Jordan, born on 16 February 1947. He first arrived in Australia on 24 December 1995, but returned to Jordan for about a month, in September-October 1997. 24 On 19 November 1999, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. He claimed that he had to leave Jordan because he was under threat of arrest by the secret police. According to the applicant, he came to the attention of the Jordanian authorities because of his political views, in particular his opposition to the monarchy. He said that he suffered physical abuse in Jordan and feared for his life if he were forced to return to that country. 25 The applicant was assisted by a migration agent in the preparation of his application form for a protection visa. He gave the name and address of the migration agent on his application form, as follows: VICTOR S LAMBA BUTTERWORTHS MIGRATION CONSUL 8 BRIDGE ROAD HOMEBUSH 2140. He requested that correspondence should be sent to the agent's address. The applicant also recorded that his residential address was 7/30 Wigram Street, Harris Park. 26 As already noted, on 15 February 2000, the Minister's delegate refused to grant the applicant a protection visa. On that day, as the RRT found, the decision record was sent by certified mail to the applicant's migration agent at the address specified by the applicant in the application form. On the same day, the case officer forwarded a letter by certified post to the applicant at his Harris Park address, enclosing a copy of the decision record. The letter sent to the applicant was subsequently returned to the Department unclaimed.

the application to the rrt 27 According to the Department's file, the applicant contacted the Department on 27 April 2000, apparently in person. He provided to the Department what purported to be a copy of a letter, dated 20 December 1999, written by his migration agent and addressed to the case officer. The letter informed the case officer that the applicant would be residing at a new address, namely 18/232 Hector Street, Bass Hill. There was no record in the Department's file of any notification of the applicant's change of address. In particular, the original of the purported letter bearing date 20 December 1999 was not on the Department's file. 28 On 3 May 2000, the case officer wrote to the migration agent enclosing a further copy of the decision record relating to the delegate's decision. The letter advised the agent that there was no record on file of any notification of change of address for the applicant. 29 On 11 May 2000, the applicant lodged an application for review of the delegate's decision with the RRT. The application gave the applicant's address as 18/232 Hector Street, Bass Hill. That address was designated on the applicant's form as the applicant's address for service. The application form also indicated that the migration agent, Mr Lamba, who had previously acted on the applicant's behalf, continued to represent him. 30 The application for review was accompanied by a statutory declaration made by the applicant, in the following terms: "That I am late in filing my application to the RRT because I came to know about the decision from the Department only in the last week of April. I had written to the Department of Immigration regarding my change of address. The Department posted me a letter on my old address which I did not receive. The letter which was sent by him was returned to them as I was not living there. However they could not find the letter in my file in which I had requested them about the change of my address. I would like to request you to kindly accept my application." 31 On 27 September 2000, the RRT wrote to the applicant at his Bass Hill address. The letter stated that the Department's records showed that he had been notified of the delegate's decision by letter dated 15 February 2000 and asserted that he was taken to have received the letter in the ordinary course of post, unless he could show otherwise. The letter also pointed out that the application for review of the delegate's decision had not been received within the prescribed period and it therefore appeared to have been lodged out of time. He was invited to make submissions in relation to this issue. A copy of the RRT's letter to the applicant was also sent to the migration agent. 32 On 29 November 2000, the RRT received from the applicant the letter (or a copy of the letter) that had been sent to him on 27 September 2000. The letter was accompanied by a statutory declaration which, apart from the date, was in identical terms to the declaration supplied by him in May 2000. A handwritten note on the back of the statutory declaration was in the following terms: "Please send me your letter to this my address 18/232 Hector Street BASS HILL NSW 2197" The note bore the same signature as the statutory declaration.

the rrt's decision 33 The RRT referred to the relevant provisions of the Migration Act and to the Migration Regulations. The RRT's summary of the effect of reg 5.03 shows that, as Mr Johnson conceded, it had in mind the form of the regulation as amended on 1 July 2000. The substance of the RRT's reasoning is as follows: "The notice of the delegate's decision was dated 15 February 2000. The Tribunal is satisfied that its contents complied with the statutory requirements. The Department's file records indicate that the applicant had given the Minister an address under s 53(4) of the Act and that the notice was sent by certified mail to that address on 15 February 2000. This address was the address of the applicant's adviser. A copy was also sent to the applicant at his residential address. The letter sent to the applicant's residential address was returned unclaimed. The Tribunal is satisfied that the notice was sent within the proscribed [sic] time to the correct address. The applicant is therefore taken to have received the notice on 22 February 2000. The Tribunal accepts that the application for review was received on 11 May 2000, which is 86 days after the date of the decision. According to the Department's file, on 27 April 2000, the applicant contacted DIMA and provided the Department with a copy of a letter from his adviser, dated 20 December 2000, in which the adviser told the Department that the applicant's residential address had changed. This letter did not indicate that the applicant's address for service had changed. In a letter to the applicant's adviser, dated 3 May 2000, the Department advised that it had noted the change of address but stated that there was no earlier record that the address had been changed. This letter also noted that the Departmental decision had been notified to the adviser on 15 February 2000. In his Statutory Declaration of 14 November 2000, the applicant stated that he was late in applying for review because he did not receive a copy of the decision until 27 April 2000. He stated that he had informed the Department of his change of address but that the Department had sent the notification of his decision to his old address. The Tribunal is satisfied, on the basis of the evidence before it, that the notification of the Department's decision was sent to the applicant at the address which he provided in his application for a protection visa…as his address for service. The Tribunal is satisfied that this address was that of his adviser, a registered migration agent. The Tribunal notes that neither the applicant nor his adviser has contended that the notification of the Departmental decision was not received at that address. The Tribunal notes in this regard that this letter to the address for service was not returned unclaimed. As the review application was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction to review the delegate's decision." 34 As can be seen from this passage, the RRT found that the letter of 15 February 2000 was sent by the RRT by certified mail to the address supplied by the applicant pursuant to s 53(4) of the Migration Act. It is clear enough that the RRT relied on reg 5.03 to support its finding that the letter was taken to have been received by the agent on 22 February 2000, seven days after the date it bore. The RRT then relied on s 53(6) of the Migration Act to conclude that the applicant had to be taken as having received the letter on 22 February 2000.

THE OBJECTion TO COMPETENCY 35 The facts relevant to the objection are these: · On 7 December 2000, the RRT made its decision that it lacked jurisdiction to determine the applicant's application for review of the delegate's refusal to grant him a protection visa. · On 8 December 2000 the Registry of the RRT sent a letter to the applicant attaching the RRT's decision and reasons for decision. The letter was sent by pre-paid registered post to the applicant's address for service as specified in his application for review to the RRT. · The applicant did not receive the letter until 16 January 2001, when he collected it from the Post Office. · The applicant first learned of the RRT's decision when he received a copy of the decision and reasons for decision from his migration agent on 12 January 2001. It was this event which prompted the applicant to attend at the Post Office on 16 January 2001. · The applicant filed the application for review in this Court on 29 January 2001. This was within twenty-eight days of receiving a copy of the RRT's decision and reasons for decision. · The application for review in this Court was filed more than twenty-eight days after the date the letter was taken to have been received by the applicant, in accordance with reg 5.03(1)(a). That date was 15 December 2000. 36 The facts in this case are relevantly identical to those of Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680. In Kumar, Mansfield J reviewed at length the authorities that have addressed the relationship between s 478(1)(b) of the Migration Act and reg 5.03(1) of the Migration Regulations. His Honour followed the decision of Beaumont J in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574, that reg 5.03(1), in these circumstances, deems the applicant to have received the letter sent by the RRT by pre-paid post at the time specified, namely seven days from the date of the letter. Beaumont J said this (at 581): "Whatever literal differences there might be in the language [of s 478(1)(b) and reg 5.03], I am of the view that if the Act and the regulations, viewed (as they should be) as a single legislative plan, are read together, the clear purpose emerges that the operation of a deeming provision by which an applicant is deemed or taken to have received a document, must necessarily be equated with notification of the applicant of the document - in this case, the decision." 37 Mansfield J recognised (at 686) in Kumar that some decisions have held that an applicant is not "notified" of an RRT decision for the purposes of s 478(1)(b) of the Migration Act unless he or she has been actually notified: Kamkar v Minister for Immigration and Multicultural Affairs (1996) 71 FCR 424 (North J); Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 (Merkel J). Mansfield J pointed out, however, that reg 5.03(1), at the time these cases were decided, did not include the opening words "For the purposes of the Act and these Regulations". In his Honour's view, the presence of these words means that reg 5.03(1) must be taken into account in determining when an applicant has been "notified" of a decision of the RRT for the purposes of s 478(1)(b) of the Migration Act. 38 Mansfield J declined to follow dicta of Burchett J in Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 (FC), at 589-590, supporting the contrary view. His Honour concluded that he should follow Susiatin as a case directly in point. Not only did Mansfield J not consider the decision in Susiatin to be wrong, he thought it was correct. In his opinion, the meaning of reg 5.03 was simply "intractable". 39 I note that Burchett J subsequently reiterated his views in Minister v Mohammad, at 440, but the other members of the Full Court did not address the question. I also note, for the sake of completeness, that the same result as in Kumar was reached in two other decisions of single Judges of the Court, although without reference to the authorities: Jayaweera v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 395 (Heerey J); Chand v Minister for Immigration and Multicultural Affairs [2000] FCA 428 (Mathews J). 40 As the discussion in Kumar demonstrates, the course of authority in this Court on the relationship between reg 5.03 and s 478(1)(b) of the Migration Act has not been entirely uniform. In my view, the appropriate course is for me to follow the two reasoned decisions precisely in point, namely Susiatin and Kumar. Those decisions of course concerned reg 5.03 in the form it took prior to the amendment which came into force on 1 July 2000. But the amendment makes no difference to the reasoning in each case. They remain precisely in point. 41 I recognise, as Lee J did in Ayub v Minister at [36] that reg 5.03 when applied to s 478(1)(b) of the Migration Act has the "capacity to work substantial injustice". I also recognise that different minds can differ (and indeed have differed) as to the questions of construction. However, I do not regard the decisions as plainly wrong. 42 I should add that I have not overlooked the judgment of Hely J in Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243, at 250-251, in which his Honour expressed a preference for Burchett J's comments in Sook Rye Son over the approach of Beaumont J in Susiatin. Uddin was decided shortly before Kumar, but was not referred to by Mansfield J. However, Hely J was not specifically concerned with the relationship between s 478(1)(b) of the Migration Act and reg 5.03(1), but with the application of reg 5.03 to s 426 (which obliges the RRT to notify an applicant that he or she is invited to appear before the RRT to give evidence). Accordingly, his Honour's comments were made in a different statutory context and were not directed to the precise issue resolved in Kumar. See also Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401, at 407-408, per Lehane J. 43 Not surprisingly, the applicant raised no issue as to the validity of reg 5.03 in its current form. I have therefore not had the benefit of any argument on the question. The validity of reg 5.03 in its current form was, however, argued in Chand v Minister for Immigration and Multicultural Affairs [2000] FCA 1743. Moore J found it unnecessary to resolve the question, but expressed the view (at [4]) that the argument in support of invalidity was "untenable". 44 It is difficult, in my view, to see how reg 5.03 in its present form could render a right of review under the Migration Act nugatory. A letter or document cannot now be deemed to be received the very date it was sent. Regulation 5.03(1) in its present form only applies if the document is sent within three days of the date it bears. The receipt of the document is taken to occur seven days after that date. It is also difficult to see how the other problems identified in the majority judgment in Singh (at 90-91) could arise under the current reg 5.03. There is therefore no basis for me to hold that reg 5.03 in its current form is invalid. (I note that the majority in Singh appears to have incorrectly assumed, at two points in the judgment, that reg 5.03 deems receipt of a document to occur on the date of the document itself, rather than seven days after that date: see at 90 [46], 91 [49]: see Minister v Mohammad, at 458, per Marshall J. Nothing turns on this for present purposes.) 45 For these reasons, I conclude that the effect of reg 5.03(1) is that the applicant must be taken to have been notified of the RRT's decision on 15 December 2000 for the purposes of s 478(1)(b) of the Migration Act. This is so notwithstanding that, on the facts found by me, he was not actually notified of the decision until 12 January 2001. The application to this Court was therefore filed outside the period specified by s 478(1)(b). The Minister's objection to competency must be upheld.

was the rrt's decision correct? 46 Since I have upheld the Minister's objections to competency, it is not necessary to consider whether, had the application to this Court been filed within time, an order should be made setting aside the RRT's decision. I think it appropriate, nonetheless, to indicate what conclusion I would have reached on that issue had the objection to competency been overruled. 47 As I have noted, Mr Johnson conceded that the RRT had made an error of law in assuming that reg 5.03, as amended on 1 July 2000, was in force in February 2000. He submitted, however, that the error was immaterial because the RRT, if the matter were to be remitted to it, would be bound to conclude that the applicant's agent received actual notification of the delegate's decision shortly after 15 February 2000. Section 53(6) of the Migration Act would then have the consequence, so he argued, that the notification is taken to have been received by the applicant at the time the agent received actual notification of the delegate's decision. 48 The RRT found that the applicant had provided the RRT with the address of his agent as his address for service. The address so provided complied with the requirements of s 53(4) and (5) of the Migration Act see Chand v Minister, at [14], [15] per Moore J. The RRT also found that the notice was sent by the case officer by certified mail to the correct address of the agent. It follows that the notice was given in conformity with the requirements of reg 2.16(1)(c). Moreover, in my view, it is implicit in the RRT's reasoning that it found that the applicant's agent actually received the notice sent by certified mail. Otherwise, there would have been no point to the RRT's comment that the notice had not been returned unclaimed, nor to its observation that neither the applicant nor his adviser had contended that the notice had not been received at the agent's address. 49 The RRT made no finding as to the date notice was actually received. The reason for this omission is clear enough. On the RRT's analysis it was unnecessary to specify the actual date of receipt, since it relied upon reg 5.03 to conclude that the deemed date of receipt was 22 February 2000. But had the RRT recognised that it could not rely on reg 5.03 (because the regulation in that form was invalid), I think it inevitable that the RRT would have concluded on the material before it that the notice had been received by the applicant's agent shortly after it was sent by certified mail on 15 February 2000. The findings made by the RRT pointed strongly to this conclusion and there was no evidence to the contrary. It is true that the applicant asserted that he had learned of the delegate's decision only in late April, but his statutory declaration said nothing to indicate that his agent had not received the notice shortly after it had been sent to the agent by certified mail. 50 Where the RRT's reasons reveal an error of law, the normal course is to remit the matter so that the RRT can make the necessary factual findings to resolve the application. However, if such an order would be futile because the RRT's reasoning, or the material before the RRT, shows that it would reach the same result if the law had been applied correctly, it may be appropriate simply to dismiss the proceedings: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550, at 560-61 per Sackville J. The test is whether the error of law could have affected the outcome of the case: Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513 (FC) at 519, per Burchett J. In my opinion, for the reasons I have given, it has not been shown that the RRT's error of law could have affected its decision that it did not have jurisdiction to deal with the application for review of the delegate's decision. Accordingly, had the Minister's objection to competency been overruled, I would have dismissed the applicant's claim for relief. 51 I have reached this conclusion without reference to the evidence given by the applicant in this Court. It is not for the Court to make additional findings of fact in order to fill gaps left by the RRT. It may be worth noting, however, that the applicant accepted in cross-examination that his agent had known for some time about the notice sent by the case officer, but had simply failed to tell him (the applicant) of its existence. The applicant also acknowledged that the agent had known about the notice "when it wasn't too late", but had not passed on the information to the applicant. Taken in context, I understood the applicant to be accepting that the agent did not tell him that the notice had been received until more than twenty-eight days had passed from the date of its actual receipt by the agent.

CONCLUSION 52 The Minister's objection to competency should be upheld. The application should be dismissed, with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .

Associate: Dated: 14 June 2001 The Applicant was unrepresented. Counsel for the Respondent: Mr R Johnson

Date of Hearing: 29 March, 10 May & 1 June 2001

THE OBJECTION tO COMPETENCY AND REGULATION 5.03 3 A further problem of timing has arisen in connection with the application filed in this Court. A letter notifying the applicant of the RRT's decision was sent to him by registered mail on 8 December 2000. The application to this Court was not filed until 29 January 2001, some 45 days after 15 December 2000, the date the applicant (according to the Minister) was deemed to have received the letter. 4 The Minister filed a notice of objection to competency which (as amended) contends that the Court lacks jurisdiction to deal with the application for review because it was filed outside the 28 days period provided by s 478(1)(b) of the Migration Act. Section 478(1)(b), which is the counterpart to s 412(1)(b), provides as follows: "(1) An application under section 476 or 477 must: (a) ... ; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision." Section 478(2) prohibits the Federal Court from making an order allowing or which has the effect of allowing an applicant to lodge an application outside the period specified in s 478(1)(b). 5 The Minister's objection to competency relied on reg 5.03 of the Migration Regulations, which is in the following terms: "(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; or (b) …; or (c) …. (1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time the document is taken to be received at the address to which the document is sent, which is either: (a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or (b) …. (2) Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document." 6 The Minister contended that, since the RRT sent a registered letter on 8 December 2000 to the applicant at his correct address notifying him of the RRT's decision, the effect of reg 5.03(1) is that he is taken to have received the letter seven days after its date, that is on 15 December 2000. Accordingly, regardless of whether the applicant actually received the notice, the period of twenty-eight days provided for in s 478(1)(b) expired seventeen days before the applicant actually filed his application in the Court. The Minister relied on the authorities establishing that s 478(1)(b) has the effect that the filing of an application within the time specified is a condition of the exercise of the Court's jurisdiction: Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 (FC); Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 at 282 per French J; cf Ayub v Minister for Immigration and Multicultural Affairs [2000] FCA 1844, at [30] ff. 7 Regulation 5.03 has taken the form set out in [5] above since 1 July 2000, when Schedule 2 to the Migration Amendment Regulations 2000 (No 3) commenced. Schedule 2 amended reg 5.03(2) to substitute three days for the period of seven days previously specified in reg 5.03(2). The earlier version of reg 5.03 was held invalid by a majority of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 (O'Connor and Mansfield JJ; Tamberlin J dissenting), a case involving the interaction between reg 5.03 and s 412(1)(b) of the Migration Act. 8 The majority in Singh held that reg 5.03, in its pre-July 2000 form, was not within the regulation-making power conferred by sub-ss 504(1)(e) and (3) of the Migration Act. These provisions authorise the making of regulations in relation to the giving and service of documents, including regulations providing that a document given to or served on a person in a specified way is to be taken for all purposes of the Migration Act and the Migration Regulations to have been received by the person at a specified or ascertainable time. Their Honours explained the difficulty this way (at 89-90): "It is apparent on the face of reg 5.03 that it is capable of operating to abridge the time limits prescribed by reg 4.31, and to do so in a way which might effectively render the right of review nugatory. That is because it operates so long as the document is sent within seven days after it is dated. It deems the date of receipt to be seven days after the date of the document. The date of receipt is determined by reference to the date of the document rather than the date it is sent. Thus, a document may be sent on the very day it is deemed to have been received. If the document is sent on the seventh day after it is dated, and it takes some time to be delivered (say, up to four working days: cf s 160 of the Evidence Act), the period of time within which an application for review may be brought will have commenced to run will have effectively been shortened by the time it takes for the document to be received. It operates when the document is posted from any place in Australia to any other place in Australia. Of course, in most cases, that consequence will not in fact arise because the document will have been sent on or within a day or so of its date. But reg 5.03 provides for its operation to deem receipt seven days after the document is dated, whether it is sent on that day or any day within the next succeeding seven days. In the case of a visa applicant who is in immigration detention, the time within which any application for review to the Tribunal may be brought is seven days from notification of the decision: reg 4.31(2)(a). If the notice of the decision is sent by pre-paid mail on the seventh day after the notice itself is dated, reg 5.03 provides that the notice is taken to have been received on that very day. The unsuccessful visa applicant, in those circumstances, would not have received the notice on the day it was posted. Effectively, therefore, reg 5.03 would operate in such circumstances to remove the right of review which the Act grants." Clearly enough, the amendment to reg 5.03(2) made by the Migration Amendment Regulations 2000 (No 3) was designed to overcome the difficulty identified by the majority in Singh. 9 It should be noted that in a recent Full Court decision different views were expressed as to whether Singh had the consequence that there was no room for the valid operation of reg 5.03 in its pre-July 2000 form: see Minister for Immigration and Multicultural Affairs v Mohommad (2000) 101 FCR 434, at 450-452, per Branson J; cf at 457-459, per Marshall J. Nothing turns on this for present purposes, since Mr Johnson in his submissions on behalf of the Minister accepted that reg 5.03 in that form could not be validly applied to the notification referred to in s 478(1)(b) of the Migration Act.

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